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Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 21 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.

This article looks at the common misconception that older children have the right to decide the parenting arrangements that suit them.

The reality is that when a Family Law Court is asked to make Orders about parenting arrangements, it must consider the best interests of the child as the paramount consideration.

There is nothing in the Act that says that children of any age can “make up their own mind” about what is in their best interests.

The fact that a teenage child is expressing a view of their own that they wish to live with mum and not dad or vice versa, does not on its own create any legal obligation on the Court.

What is in a child’s “Best Interests”?

The main considerations for a Court are:

  • The benefit to the child of having a meaningful relationship with both parents; and

  • The need to protect the child from harm (physical or psychological) by being exposed or subjected to abuse, neglect or family violence.

The protection of children from harm is the most important consideration for a Family Law Court.

If a child is mature enough to have a view about the proposed arrangements, the Court can take those views on board. This does not mean that your child will be called to the Court as a witness in proceedings or even be present at Court during the proceedings.

The Court will often obtain evidence of the child’s views through a Family Report. This is prepared after the parties meet with a social worker or psychologist who provides a report following the interviews to the Court. They can speak with the children as well as the parents and will give a professional opinion as to what living arrangements they think are in the best interests of the children.

If appropriate, the psychologist or social worker can inform the Court of the child’s opinions about the arrangements.

The Court can also appoint an Independent Children’s lawyer to represent the interests of the child in the proceedings.

This Lawyer does not take instructions from the child, but rather makes all necessary enquiries on behalf of the child to assess what arrangements are in the child’s best interests.

Parenting matters are often complicated and stressful for all involved. Seeking early advice can often assist you to consider alternatives to Court proceedings which may help the future parenting arrangements for your children and save you the emotional and financial cost of going to Court.

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